Cavitt v. Seirson , 119 Mont. 437 ( 1946 )

The tax deed dated October 16, 1941, from C.O. Dunstall, county treasurer of the county of Toole, in the state of Montana,grantor to the county of Toole, state of Montana, grantee contains the recital:

"Whereas, no redemption from said sale has been made, and the said grantee has given the necessary Notice of Application for Tax Deed, as required by law * * *"

Section 2212, Revised Codes, is a protective or curative statute and the law is that, "Curative statutes are particularly applicable to irregularities in action, but they are ineffectual where want of authority or jurisdiction to act is lacking. Jurisdictional defects cannot be cured." Gates v. Morris, 123 W. Va. 6, 13 S.E.2d 473, 476, 134 A.L.R. 791. "The validity of a tax deed depends upon compliance with the statute authorizing its issuance." B. Kesselheim, Inc. v. Cocklin, 116 Mont. 150, 151,148 P.2d 945.

The recital that the grantee has given the necessary notice of application for tax deed, "as required by law" is in the nature of a mere conclusion of law which imports no validity to the tax deed. Rush v. Lewis Clark County, 37 Mont. 240, 95 P. 836, affirming on rehearing, 36 Mont. 566, 93 P. 943; See also, Henderson v. White, 69 Tex. 103, 5 S.W. 374; Land v. Banks, Tex. Com. App., 254 S.W. 786, 30 A.L.R. 1; Brown v. Hartford,173 Mo. 183, 73 S.W. 140; Smith v. Funk, 57 Mo. 239; Yankee v. Thompson,51 Mo. 234; Large v. Fisher, 49 Mo. 307; Howard v. Tollett, 202 Ala. 11, 79 So. 309; Bussenius v. Warden, 71 Cal. App. 717, 236 P. 371.

Section 2214, Revised Codes of Montana of 1935, provides that a tax deed "duly acknowledged or proved is (except as against fraud) conclusive evidence of all other proceedings from the assessment by the assessor up to the execution of the deed, both inclusive," etc. Such statutes are clearly unconstitutional in so far as they relate to those matters which are jurisdictional in their nature. See the cases cited in the annotation II, subdiv. (b) at page 16 of 30 A.L.R.

The legislature is powerless to enact any valid legislation exempting tax deeds from attack for failure to comply with requirements of a jurisdictional nature, constituting necessary prerequisites to the validity of such tax deed. The enforcement of such legislation would result in the unconstitutional taking of one's property without due process of law. Small v. Hull,96 Mont. 525, 32 P.2d 4. It follows, therefore, that the power of the legislature is limited to exempting tax deeds from attack for irregularities or omissions in purely procedural steps which are merely directory but the legislature is not empowered to exempt tax deeds from attack for irregularities or omissions which are jurisdictional and therefore mandatory.

The provisions of section 2212, Revised Codes of 1935, aremandatory and prohibitory. The mandate is that the purchaser shall file "with the treasurer" legal written proof of the giving of notice of application for tax deed; that such written proof be in the form of an affidavit which "such purchaser shall have filed with the treasurer * * * which said affidavit must be filed by the treasurer as other * * * papers * * * kept by him in his office."

The prohibition is that, "No deed of the property sold at a delinquent tax sale must be issued by the county treasurer * * * until after such purchaser shall have filed with the treasurer, or other officer, an affidavit showing that the notice hereinbefore required to be given has been given as herein required, * * *." Sec. 2212, Rev. Codes of 1935.

The filing with the treasurer of the required proof in affidavit form is a jurisdictional prerequisite to the issuance of a tax deed or to the cutting off of the right of redemption. For this reason protective or curative statutes such as sections 2213 and 2214, Revised Codes of Montana of 1935, do not operate to protect the tax deed from attack for the want of such notice or jurisdictional proof. Farris v. Anaconda Copper Min. Co., D.C. 31 F. Supp. 571; Swanson v. Campbell, 129 Minn. 72,151 N.W. 534; Russel v. Di Furia, 83 Misc. 169, 145 N.Y.S. 640; Gates v. Morris, supra.

Respecting the statutory proof of service of notice of application for tax deed, the last sentence of section 2209, Revised Codes of Montana, 1935, provides: "In all cases due proof of service of notice * * * supported by the affidavit required by law, must be filed immediately with the clerk and recorder of the county in which the property is situated, and be kept as a permanent file in his office, and such proof of notice when so filed shall be prima facie evidence of the sufficiency of the notice." It is apparent that it is "proof of service of notice" that "must be filed immediately with the clerk and recorder" and that it is such "proof of service of notice" to which the statute has reference when it states that "such proof [of service] of notice when so filed shall be prima facie evidence of the sufficiency of the [service of the] notice."

"All" includes everything and excludes nothing. "All cases" therefore includes every case and excludes no case of any kind or character.

A tax deed issued without strict compliance with the statute requiring the filing with the treasurer of the prescribed affidavit is void. B. Kesselheim, Inc., v. Cocklin, supra.

The mere fact that a tax deed was issued by the treasurer is not evidence, either conclusive, prima facie nor presumptive, tending in any wise or manner to establish that the purchaser has complied with the provision of the statute requiring the filing with the treasurer of the required jurisdictional affidavit. Cullen v. Western Mortgage Warranty Title Co., 47 Mont. 513, 134, P. 302.

And as against such void deed the curative statute affords no protection. Sanborn v. Lewis Clark County, 113 Mont. 1,120 P.2d 567; Kerr v. Small, 112 Mont. 490, 117 P.2d 271; Stoican v. Washburn, 112 Mont. 603, 120 P.2d 426.

"There can be no question that the effect of the statute is to empower the treasurer to issue the deed only upon the filingwith him of the required affidavit, and the court has repeatedly and uniformly so held." B. Kesselheim, Inc. v. Cocklin, supra. Emphasis mine. The filing of the affidavit with the treasurer is jurisdictional. No affidavit, no deed. In other words, no affidavit filed with the treasurer spells no authority, power or jurisdiction in him to issue the tax deed.